Citation Nr: 0100778
Decision Date: 01/11/01 Archive Date: 01/17/01
DOCKET NO. 99-19 778 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne,
Wyoming
THE ISSUE
Whether the noncompensable disability evaluation assigned for
irritable bowel syndrome was proper.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Hilary L. Goodman
INTRODUCTION
The veteran had active service from May 1944 to May 1946 and
from December 1946 to December 1954.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1999 rating decision which
granted the veteran's claim for service connection for
irritable bowel syndrome and assigned a noncompensable
disability evaluation, effective from November 19, 1997.
FINDING OF FACT
The veteran, shortly after the effective date of the grant of
service connection, is shown to have experienced episodes of
bowel disturbance with some abdominal distress; these
episodes are intermittent and the disability picture is one
of moderate impairment.
CONCLUSION OF LAW
A 10 percent disability evaluation for irritable bowel
syndrome is proper. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. § Part 4, Code 7319 (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran has questioned the propriety of the
noncompensable disability evaluation assigned for irritable
bowel syndrome. The Board notes that the veteran's
representative has requested that the veteran be scheduled
for an examination. It is, however, the Board's judgment
that the veteran's claim of entitlement to a compensable
rating for his service-connected irritable bowel syndrome may
be fairly decided on the evidence of record as it concerns
the symptomatology of the disability, as reported by the
veteran, from the November 1997 effective date. The evidence
of record is in the Board's judgment adequate for rating
purposes. We are satisfied that all relevant facts have been
properly developed and no further assistance to the veteran
is required to comply with the duty to assist mandated by 38
U.S.C.A. § 5107.
Factual Background
The veteran's claim for service connection for irritable
bowel syndrome was received on November 19, 1997. In an
October 1997 statement submitted with the veteran's claim,
R.S., M.D. related that the veteran had been a patient of his
for several years with complaints of gastritis and possible
irritable bowel syndrome. Additional private medical records
showed that the veteran experienced mild lower abdominal
tenderness to firm palpation in September 1997, that he
complained in January 1998 of approximately one month of
epigastric burning sensation and a six week history of
diarrhea alternating with two to three days of constipation,
and that in March 1998 he related experiencing intermittent
diarrhea.
At the time of a March 1998 Department of Veterans Affairs
(VA) examination of the veteran, he reported having symptoms
of occasional bloating and distention as well as alternating
constipation and diarrhea. He indicated that he had tried
to improve the fiber in his diet and he had noticed some
improvement of the symptoms. He also had some lactose
intolerance and tried to avoid dairy products. On
examination, the abdomen was nontender. The impression
included a history suggestive of irritable bowel syndrome as
well as mild gastroesophageal reflux disease.
Another evaluation of the veteran was conducted by the VA in
October 1998. VA patient treatment records dated in
September 1998 had indicated that the veteran's complaints
included a burning in the stomach, constipation and having
soft bowel movements. In the history given the veteran at
the time of the examination, it was noted that the veteran
reported no pain, just occasional gas. He related that he
would be constipated for one or two days and then had a day
of loose stools. It was noted that he did not use laxatives
or extra bulk.
On examination of the veteran's abdomen, the bowel sounds
were active and normal with no masses or tenderness. The
assessment included irritable bowel syndrome with minimal
symptoms and laboratory tests normal. The examiner noted
that the condition was apparently not severe enough for the
veteran to be taking any type of extra fiber.
Additional VA outpatient treatment records reflect that the
veteran complained of dyspepsia in March 1999.
Analysis
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, and 4.42
(2000) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991),
the Board has reviewed all the evidence of record pertaining
to the history of the veteran's service-connected irritable
bowel syndrome. The Board has identified nothing in this
historical record which suggests that the current evidence of
record is not adequate to fairly determine the rating to be
assigned for this disability. Moreover, the Board has
concluded that this case presents no evidentiary
considerations which would warrant an exposition of any
remote clinical history and findings pertaining to this
disability.
The veteran is seeking a compensable disability evaluation
for the period beginning November 19, 1997, the date that the
grant of service connection for irritable bowel syndrome
became effective. The United States Court of Appeals for
Veterans Claims, in Fenderson v. West, 12 Vet. App. 119
(1999), concluded that the rule from Francisco v. Brown, 7
Vet. App. 55, 58 (1994), "Where entitlement to compensation
has already been established and an increase in the
disability rating is at issue, the present level of
disability is of primary importance", is not applicable to
the assignment of an initial rating for a disability
following an initial award of service connection for that
disability. Rather, at the time of an initial rating,
separate ratings can be assigned for separate periods of time
based on the facts found-- a practice known as "staged"
ratings.
The veteran's service-connected irritable bowel syndrome is
currently rated as noncompensably disabling under the general
rating formula for irritable colon syndrome. Under the
Rating Schedule, a noncompensable rating is warranted for
mild irritable colon syndrome manifested by disturbances of
bowel function with occasional episodes of abdominal
distress. A 10 percent disability evaluation is warranted
where the condition is manifested by frequent episodes of
bowel disturbance with abdominal distress. Severe irritable
colon syndrome manifested by diarrhea, or alternating
diarrhea and constipation, with more or less constant
abdominal distress warrants a 30 percent rating. 38 C.F.R.
§ 4.114, Diagnostic Code 7319.
The Board finds that the evidence of record does establish a
level of disability relative to the veteran's irritable bowel
syndrome sufficient to warrant a disability evaluation of 10
percent for the period from November 19, 1997. In this case,
the available evidence shows that the veteran's symptoms have
intermittently included some diarrhea, constipation and
abdominal distress.
While the physician who conducted the October 1998
examination described the symptoms as minimal with no extra
fiber required, only seven months earlier the veteran had
reported symptoms of occasional bloating and distention as
well as alternating constipation and diarrhea and that he had
tried to improve the fiber in his diet. Moreover, only the
previous month the veteran was seen for a burning in the
stomach, constipation and having soft bowel movements.
With application of the provisions of 38 C.F.R. § 4.7 and
resolving all reasonable doubt as to the degree of the
disability in the veteran's favor, the Board finds that the
disability picture presented by the veteran's irritable bowel
syndrome for the period in question, from the effective date
of the grant, meets the criteria for a disability evaluation
of 10 percent as of November 19, 1997.
In reaching its decision, the Board has considered the
complete history of the disability in question as well as any
current clinical manifestations and the effect the disability
may have on the earning capacity of the veteran. 38 C.F.R.
§§ 4.1, 4.2, 4.41 (2000). The Board finds in this case the
disability picture is not so exceptional or unusual so as to
warrant an evaluation on an extraschedular basis. The Board
finds that the veteran has not contended nor has it been
shown that the disability has caused marked interference with
employment or necessitated frequent periods of
hospitalization. 38 C.F.R. § 3.321(b)(1) (2000).
ORDER
A 10 percent disability evaluation for irritable bowel
syndrome is proper. The appeal is allowed, subject to the
law and regulations governing the payment of monetary
benefits.
John E. Ormond, Jr.
Veterans Law Judge
Board of Veterans' Appeals